As the facts of this cause are fully stated in the trial court’s order set forth in the dissent of Mr. Justice Jones, it is unnecessary to repeat them here.
The principal issue on this appeal is whether the Dead Man’s Statute, Title 7, § 433, Code of Alabama, as last amended, applies to protect those claiming through a deceased person by virtue of an inter vivos transaction. We hold that it does and reverse and remand the decree of the trial court in this cause.
In considering our case law on this point., we find there are two conflicting lines of cases. As noted in the dissent, the cases of Jennings v. Jennings, 250 Ala. 130, 33 So.2d 251 (1948) and Nelson v. Howison, 122 Ala. 573, 25 So. 211 (1899), stand for the proposition that the Dead *35Man’s Statute does not protect one who succeeds to the rights of a decedent by a transaction effective during the decedent’s lifetime. Additionally, the cases of Good-game v. Dawson, 242 Ala. 499, 7 So.2d 77 (1942) and Jennings v. Provident Life & Accident Ins. Co., 246 Ala. 689, 22 So.2d 319- (1945), state, in dicta, the same proposition. According to Shepard’s Alabama Citations, neither of the Jennings cases has ever been cited while the Nelson case has been cited only three times. The dicta in Goodgame has been cited three times also.
Contrary to the Jennings and Nelson cases, there is an established line of our decisions which holds that the Dead Man’s Statute does apply to those who succeed to the rights of a decedent by an inter vivos transaction. Among these cases are Federal Land Bank of New Orleans v. Curing-ton, 233 Ala. 263, 171 So. 361 (1936); Smith v. Cook, 220 Ala. 338, 124 So. 898 (1929); Redwine v. Jackson, 254 Ala. 564, 49 So.2d 115 (1950) (a leading case in the field); and, McCulloch v. Roberts, 290 Ala. 303, 276 So.2d 425 (1973), our most recent pronouncement on this subject. The last four mentioned cases have been relied upon and cited as authority for this proposition of law twenty-one times according to Shepard’s Alabama Citations.
This latter line of cases appears to represent the clear weight of authority in this state on this subject. Moreover, we are convinced that these cases state the sounder position. The policy objective underlying the Dead Man’s Statute is to prevent testimony by living witnesses as to transactions with a person who is no longer alive to contradict such testimony. This policy applies equally as well to the inter vivos transaction as to the devise and descent situations.
As applied to the instant case, we hold that the Dead Man’s Statute rendered incompetent all testimony by complainant, J. B. Couch, concerning conversations between himself and his deceased wife respecting an alleged agreement.
It appears from the record that the alleged agreement (the foundation for an alleged constructive trust) between J. B. Couch and Juliette Couch was first introduced on the direct examination of J. B. Couch. The rule in Alabama is that the cross-examination of a witness upon a matter brought out by the other side does not waive the incompetency or make competent the evidence offered. Milton Realty Co. v. Wilson, 214 Ala. 143, 107 So. 92 (1926). The incompetency of J. B. Couch to testify as to conversations with his deceased wife during her lifetime was not waived by appellant’s cross-examination of Mr. Couch with regard to those conversations. [Parenthetically, we note this cause was tried under the provisions of Title 7, § 372(1), Code of Alabama, Recompiled 1958],
It is thus that we conclude the trial court erred in permitting J. B. Couch to testify concerning conversations with his now deceased wife. And, in light of the fact that Couch’s incompetent testimony constitutes the only evidence having any tendency to establish the alleged agreement (made the basis for a constructive trust), we need not reach the other contentions presented by the parties on this appeal.
Reversed and remanded.
MERRILL, COLEMAN, BLOOD-WORTH, MADDOX and McCALL, JJ., concur. HARWOOD, FAULKNER and JONES, JJ., dissent. HEFLIN, C. J., not sitting.